Justia Government & Administrative Law Opinion Summaries

Petitioners sought review of FERC's final rule governing what FERC calls "demand response resources in the wholesale energy market." The rule sought to incentivize retail customers to reduce electricity consumption when economically efficient. The court concluded that, because FERC's rule entails direct regulation of the retail market - a matter exclusively within state control - it exceeds the Commission's authority. Alternatively, even if the court assumed that FERC had statutory authority to execute the final rule, Order 745 would still fail because it was arbitrary and capricious. Given Order 745's regulation of the retail market, the court vacated the rule in its entirety as ultra vires agency action. Accordingly, the court vacated and remanded the rulings. View "Electric Power Supply Assoc. v. FERC" on Justia Law

Appellant, a coal mine operator, filed suit against the Secretary, challenging a Department of the Interior regulation requiring mine operators to pay a reclamation fee when the coal is ultimately sold or used, rather than immediately after the coal is removed from the ground. Appellant argued that the regulation could not be constitutionally applied to coal sold for export because the Export Clause of the Constitution states that "No Tax or Duty shall be laid on Articles exported from any state." U.S. Const. Art. I. 9, cl.5. Section 1276 of the Surface Mining Control and Reclamation Act, 30 U.S.C. 1276(a)(1) explicitly provides that all challenges to regulations promulgated under the Act must be brought within sixty days of a rule's promulgation. The court concluded that section 1276 was applicable in this case and the court agreed with the district court that appellant's challenge was untimely. Accordingly, the court affirmed the judgment of the district court. View "Coal River Energy, LLC v. Jewell, et al." on Justia Law

In consolidated appeals, the issue before the Supreme Court concerned the attorney’s fees and costs awarded in the 2006 Trans-Alaska Pipeline System tax assessment case. The superior court decided that the Fairbanks North Star Borough, the City of Valdez, and the North Slope Borough were prevailing parties for purposes of attorney’s fees and costs because they had prevailed on the main issues of the case. The superior court also applied the enhancement factors to raise the presumptive award from 30 percent to 45 percent of the prevailing parties’ reasonable attorney’s fees. The owners of the Trans-Alaska Pipeline System appealed, arguing the superior court should have applied Alaska Appellate Rule 508 instead of Civil Rules 79 and 82. In the alternative, they contended: (1) that the three municipalities did not prevail as against the owners; (2) that fees should have been allocated between separate appeals; (3) that none of the prevailing parties were entitled to enhanced attorney’s fees; and (4) that the Fairbanks North Star Borough’s award should have been reduced as recommended by a special master. The Fairbanks North Star Borough and the City of Valdez cross-appealed, arguing that the superior court should have viewed this case as one involving a money judgment for purposes of an attorney’s fees award under Rule 82(b)(1) and, in the alternative, that they were entitled to a greater enhancement of their fees. Finding no reversible error, the Supreme Court affirmed. View "BP Pipelines (Alaska) Inc. v. Alaska, Dept. of Revenue" on Justia Law

Following the 1941 attack on Pearl Harbor, each of the Oil Companies entered into contracts with the government to provide high-octane aviation gas (avgas) to fuel military aircraft. The production of avgas resulted in waste products such as spent alkylation acid and “acid sludge.” The Oil Companies contracted to have McColl, a former Shell engineer, dump the waste at property in Fullerton, California. More than 50 years later, California and the federal government obtained compensation from the Oil Companies under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. 9601, for the cost of cleaning up the McColl site. The Oil Companies sued, arguing the avgas contracts require the government to indemnify them for the CERCLA costs. The Court of Federal Claims granted summary judgment in favor of the government. The Federal Circuit reversed with respect to breach of contract liability and remanded. As a concession to the Oil Companies, the avgas contracts required the government to reimburse the Oil Companies for their “charges.” The court particularly noted the immense regulatory power the government had over natural resources during the war and the low profit margin on the avgas contracts. View "Shell Oil Co. v. United States" on Justia Law

In 2012, Monongahela Power Company (“Mon Power”) filed a petition with the Public Service Commission of West Virginia ("Commission") to approve a generation resource transaction between it and Allegheny Energy Supply, LLC (“AE Supply”). The transaction consisted of Mon Power’s acquisition of AE Supply’s interest in the Harrison Power Station (“the plant”) and Mon Power’s recovery of a portion of its investment in that acquisition. The Commission approved a $257 million acquisition adjustment in the purchase price of the plant and allowed Mon Power, under certain conditions, to pass the acquisition adjustment to its customers in the rates that customers pay for electricity. The Supreme Court affirmed the Commission’s order, holding that the Commission’s findings were not contrary to or unsupported by the evidence and were not arbitrary, and the Commission’s application of the law was consistent with Commission precedent. View "W. Va. Citizen Action Group v. Pub. Serv. Comm'n of W. Va." on Justia Law

In 2012, the Montana Board of Oil and Gas Conservation (MBOGC) adopted special statewide temporary spacing units for certain wells. Petitioners = filed a petition for judicial review of MBOGC’s order, stating that it was filed pursuant to Mont. Code Ann. 82-11-144 and Mont. Code Ann. 2-4-702. The district court dismissed Petitioners’ proceeding, stating that the “sole remedy for a person aggrieved by an order of the MBOGC was a challenge under Montana Code Ann. 82-11-144.” The Supreme Court reversed, holding that the district court erred in dismissing the action, as Petitioners’ allegations, coupled with their express reliance upon section 82-11-144 as a legal basis for their petition, should have been sufficient to save their petition from dismissal on the ground that they had not pursued their “sole remedy” of proceeding under that statute. View "Ostby v. Bd. of Oil & Gas Conservation" on Justia Law

Mississippi Power Company filed documents asserting confidentiality with the Mississippi Public Service Commission related to a certificate-of-public-convenience-and-necessity proceeding in January 2009. In July 2012, Bigger Pie Forum (BPF) requested three of those documents from the Commission, and Mississippi Power sought a protective order. Following a hearing, the Chancery Court ordered that the documents be produced. Mississippi Power appealed. The Supreme Court affirmed the judgment of the Chancery Court to the extent that it ordered disclosure of the January 2009 gas price forecasts and CO2 cost assumptions that were similar in kind to those already published (by news media). However, the Court remanded this case to the Chancery Court to should consider the documents under seal and order that information pertaining to natural gas price forecasts and CO2 costs assumptions be produced by Mississippi Power. View "Mississippi Power Company v. Mississippi Public Service Comm'n" on Justia Law

Plaintiffs appealed the district court's grant of summary judgment to Alabama Power on their complaint alleging that Alabama Power unreasonably lowered the water levels of Smith Lake. Determining that Article III's standing requirements have been met, the court concluded that the district court did not abuse its discretion in declining to issue a declaratory judgment concerning plaintiffs' purported riparian rights. Plaintiffs did not have a right to a declaratory judgment and the district court did not abuse its substantial discretion by assuming plaintiffs had riparian rights and then resolving their claims on an alternative basis. The court agreed with the district court that plaintiffs' claims were a collateral attack on the FERC's final relicensing determination. Plaintiffs' argument that they were not subject to the exclusive judicial review provision of section 825l(b) of the Federal Power Act, 16 U.S.C. 825l(b), because they are distinct parties from Smith Lake Improvement and Stakeholders Association (SLISA) and did not participate in the proceedings before the FERC was unavailing. Section 821 of the Federal Power Act, 16 U.S.C. 821, did not allow plaintiffs to veto the operation of a project that was approved and licensed by the FERC. Accordingly, the court affirmed the district court's judgment denying plaintiffs' motion for partial summary judgment and granting summary judgment to Alabama Power. View "Otwell, Sr., et al. v. Alabama Power Co." on Justia Law

Applicant Ecos Energy, LLC appealed the Public Service Board's decision that its proposed solar power project did not qualify for a standard-offer power purchase contract under Vermont's Sustainably Priced Energy Enterprise Development (SPEED) program because it exceeded the statutory limit on generation capacity. In 2009, the Board issued an order in which it prescribed various procedures and requirements for the standard-offer program. The standard-offer program was administered by the SPEED facilitator, VEPP, Inc. One of the participants in the implementation process, Central Vermont Public Service, commented that separate projects would need to enter into separate interconnection agreements with the utility, enter into separate standard contracts, and obtain separate certificates of public good. Another participant, Renewable Energy Vermont, commented that the statute was clear that "separate plants that share common infrastructure and interconnection should be considered as one plant." In April 2013, VEPP issued a request for proposals (RFP) for projects. Applicant proposed three 2.0 MW solar projects (the Bennington Solar project, the Apple Hill Solar project, and the Sudbury Solar project). Applicant's three projects were the lowest-priced projects. In submitting the RFP results to the Board, VEPP noted that the Bennington project and the Apple Hill project would be located on the same parcel of property and the generation components of the project were "physically contiguous." It requested that the Board make a determination as to whether or not the two projects constituted a single plant. The Board accepted the Bennington project and disqualified the Apple Hill project, which had a higher price. The Board authorized VEPP to enter into standard-offer contracts with applicant for the Bennington and Sudbury projects. Applicant subsequently petitioned the Board to reconsider and modify its order. When it refused, applicant appealed the decision. Upon review of the matter, the Supreme Court found that the Board's conclusion that the Bennington and Apple Hill projects constituted a single plant was contrary to the plain language of the applicable statute: the Bennington and Apple Hill projects would qualify as "independent technical facilities." As such the Court reversed the Board's decision and remanded the case for further proceedings. View "In re Programmatic Changes to the Standard-Offer Program and Investigation into the Establishment of Standard-Offer Prices under the Sustainably Priced Energy Enterprise Development" on Justia Law

Wayne Morrow filed a permissive appeal to the Circuit Court's order denying his request for a judgment declaring that the $100,000 cap on damages in section 11-47-190, Ala. Code 1975, applied to Morrow, a municipal employee who was sued in his individual capacity. In 2009, Alice Yu sought to have Alabama Power Company restore electrical service in her name at a commercial building she was leasing. The premises had been without power for approximately eight months. The City of Montgomery sent Morrow to perform an electrical inspection of the premises and clear the premises for service before electrical service was restored. Keandarick Russell, a minor, was staying with his great-grandmother, who lived next door to the premises. Russell was playing on the concrete pad on which the air-conditioning system was located and was electrocuted when he came in contact with a chain-link fence adjacent to the premises. When the incident occurred, wires from an uncovered junction box at the electrical source had come in contact with a portion of the fence, and, as a result, the fence had become electrified. Russell was electrocuted when he touched the fence. Shameka Caldwell, as Russell's mother and next friend, filed a wrongful-death action against multiple defendants, including Morrow and Yu for two fictitiously named defendants. In the amended complaint, Caldwell alleged that Morrow had negligently, recklessly, and/or wantonly inspected the premises and had negligently, recklessly, and/or wantonly allowed electrical service to be restored to the premises. In his answer, Morrow asserted that he was entitled to State immunity, to State-agent immunity, and to qualified immunity. Upon review, the Supreme Court concluded the plain language of 11-47-190 did not limit the recovery on a claim against a municipal employee in his or her individual capacity, the $100,000 statutory cap on recovery would not apply to Caldwell's claims against Morrow. Therefore, the trial court properly denied Morrow's request for a judgment declaring that it would. View "Morrow v. Caldwell" on Justia Law